File Essay: How Journalists Make the Meaning of the First Amendment

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Patrick File

In 1980, John Lofton published The Press as Guardian of the First Amendment to a mixed response. Reviewers were intrigued by Lofton’s central argument—that since the founding, U.S. newspaper publishers had been merely fair-weather friends of freedom of speech—but some found the scope and depth of his research incomplete.[i] The book has since garnered a respectable number of citations, which primarily reiterate its core assertion, but little of that scholarship has challenged or elaborated on Lofton’s thesis or sought to fill the gaps that the book’s reviewers identified. Scholars in our field should engage directly with a fundamental assumption on which the book rests: that journalists and news organizations play a key role in our collective understanding of freedom of speech and the press in democratic society. Yet, we have surprisingly little nuance with which to discuss this assumption, especially considering the steady advance of meaningful lines of study examining journalism’s professional practice, its relationship with the public, and developments in First Amendment law over the last 100 years.

Law and Journalistic Practices

Law plays a crucial role in the definition and delineation of journalism’s acceptable professional practices and place in democratic society. Although this is not difficult to grasp conceptually, we have yet to develop clear frameworks for explaining the processes through which society uses law to articulate, contest, and enact journalistic roles. This is in spite of abundant attention paid to the cultural and social contingency of journalism. Decades ago, James Carey encouraged us to focus on “the idea of a report” as an evolving and influential “expression of human consciousness” that plays a pivotal role in the maintenance of society, and many studies followed that developed a clearer understanding of the cultural role of journalistic renderings of reality.[ii] Scholars have also examined how journalists’ practices, routines, and rules, developed in relation to external pressures and institutions, formulate their identities and values.[iii] This work has offered key insights about how influential, coexisting, and contradictory concepts like objectivity, impartiality, the gatekeeping role, or the watchdog role developed and took hold within the field, but journalists’ ideas about freedom of speech and the press have largely been absent from or ancillary to the analysis.[iv]

Meanwhile, scholars of media law have explained how a range of landmark rulings of the past century like International News Service v. Associated Press (1918), New York Times v. Sullivan (1964), Department of Justice v. Reporters Committee for Freedom of the Press (1989), and Bartnicki v. Vopper (2001) have helped clarify democratic values that are integral to journalism.[v] But these studies and the normative realm of First Amendment theory overall—responsible for our understanding of concepts like the marketplace of ideas or the checking value of a watchdog press—have done relatively little to explain the precise role journalists, their organizations, and institutions play in the construction and maintenance of those ideals and ideas.[vi]

When these parallel tracks of scholarship—both of which offer important insights about how the democratic role of journalism is socially constructed—are drawn together, we can better understand their interplay: Asking how professional role-construction among journalists influences our understanding of the democratic role of the First Amendment, and vice-versa.

Among recent examples, Mike Ananny argues that understanding how the press has defined acceptable practices and routines of journalism, and thus its own freedom and autonomy, is essential to understanding how the press ensures a fundamental “public right to hear.”[vii] Dean C. Smith has argued that a legal privilege protecting journalists’ confidential sources—a constitutionally questionable concept—has nevertheless survived over time thanks to journalists’ contributions to the legal discourse around the issue.[viii] Similarly, Michael Schudson has argued that the emergence of “the right to know”—a concept considered crucial to transparency in democratic government but not formally enshrined in the nation’s founding documents—is largely thanks to a twentieth-century culture of transparency driven by journalists, politicians, and civic groups.[ix]

Journalism History and the First Amendment

The discipline of journalism history has much to offer the project of clarifying the role of journalists and journalism in the social construction of the First Amendment, particularly because it encourages scholars to examine a wide array of sources for evidence of change or stasis over time. In the context of legal concepts, this means looking well beyond formal legal forums to consider how ideas are articulated and succeed or fail in becoming dominant. Centralizing discourse and debate about legal concepts that do not necessarily arise in traditional legal contexts can illuminate fascinating historical questions, particularly when actions and outcomes do not match the discourse about concepts or controversies. What kinds of technologies are embraced or discarded because they are considered most or least in alignment with journalists’ perceptions of press freedom? What does the institutional and systematic exclusion of certain voices and perspectives say about the journalistic conception of free speech? How might we expect these dynamics to change as the institutional power and influence of journalism decentralizes or diminishes?

To acknowledge 100 years of journalism scholarship and First Amendment doctrinal development now behind us, we should strive to better understand the fundamental relationship between journalism and press freedom by challenging ourselves to tell more complicated stories about both.

About the author: Patrick File is Assistant Professor of Media Law at the Reynolds School of Journalism at the University of Nevada, Reno. He is the author of Bad News Travels Fast: The Telegraph, Libel and Press Freedom in the Progressive Era (University of Massachusetts Press, 2019).

Featured Image: “Keystone of Independence,” The Fourth Estate, March 24, 1898. Microfilm collection, University of Nevada, Reno, Libraries.

References

[i] See, e.g., Patricia A. Hurley, review of The Press as Guardian of the First Amendment by John Lofton, Social Science Quarterly 62, no. 2 (June 1981): 383-384; Byron G. Lander, review of The Press as Guardian of the First Amendment by John Lofton, The American Political Science Review 75, no. 2 (June 1981): 496-497; Donald Roper, review of The Press as Guardian of the First Amendment by John Lofton, The Historian 44, no. 2 (Feb. 1982): 283; Stephen Vaughn, review of The Press as Guardian of the First Amendment by John Lofton, The Journal of American History 68, no. 1 (June 1981): 100-101.

[ii] James Carey, “The Problem of Journalism History,” Journalism History 1, no. 1 (1973): 3-5, 27 and Carey, Communication as Culture (Boston: Unwin Hyman, 1989), 18. See, e.g., Kathy Roberts Forde and Katherine A. Foss, “‘The Facts— The Color!—The Facts’ The Idea of a Report in American Print Culture, 1885–1910,” Book History 15 (2012): 123-51; and Andie Tucher, “Notes on a Cultural History of Reporting,” Cultural Studies 23, no. 2 (March 2009): 289-98.

[iii] See David Ryfe, “Guest Editor’s Introduction: New Institutionalism and the News,” Political Communication 23, no. 2 (2006): 135-144; and Tim Vos, “Historical Perspectives on Journalistic Roles,” in Journalistic Role Performance: Concepts, Contexts, and Methods, Claudia Mellado, Lea Hellmueller, Wolfgang Donsbach, Eds. (New York, NY: Routledge, 2017): 41-59.

[iv] Cf., e.g., Jeffery A. Smith, Printers and Press Freedom: The Ideology of Early American Journalism (New York: Oxford University Press, 1988); Timothy Gleason, The Watchdog Concept: The Press and the Courts in Nineteenth-century America (Ames: University of Iowa Press, 1990). My own attempts to incorporate these ideas include Patrick File, Bad News Travels Fast: The Telegraph, Libel, and Press Freedom in the Progressive Era (Amherst: University of Massachusetts Press, 2019); and File, “Journalism, Public, Policy: An Institutional View of the Press’s Legal Discourse at the End of the Nineteenth Century,” Journalism & Mass Communication Quarterly 96, no. 3 (Autumn 2019): 830-847. Parts of this essay draw from these and other forthcoming writings.

[v] See, e.g., Victoria Smith Ekstrand, Hot News in the Age of Big Data: A Legal History of the Hot News Doctrine and Implications for the Digital Age (El Paso: LFB Scholarly Publishing, 2015): 27-108 (discussing International News Service v. Associated Press); W. Wat Hopkins, Actual Malice: Twenty-five Years after Times v. Sullivan (New York: Praeger, 1989); Martin E. Halstuk & Charles N. Davis, “The Public Interest be Damned: Lower Court Treatment of the Reporters Committee ‘Central Purpose’ Reformulation,” Administrative Law Review 54, (2002): 983-1024; and Eric Easton, “Ten Years After: Bartnicki v. Vopper As A Laboratory for First Amendment Advocacy and Analysis,” University of Louisville Law Review 50 (2011): 287-335.

[vi] See Edward Carter, “Mass Communication Law and Policy Research and the Values of Free Expression,” Journalism and Mass Communication Quarterly 94, no. 3 (2017): 641-662; and Yorgo Pasadeos, Matthew Bunker, and Kyun Soo Kim, “Influences on the Media Law Literature: A Divergence of Mass Communication Scholars and Legal Scholars?,” Communication Law and Policy 11, no. 2 (2006): 179-206.

[vii] Mike Ananny, Networked Press Freedom: Creating Infrastructures for A Public Right to Hear (Cambridge, Mass: The MIT Press, 2018).

[viii] Dean C. Smith, Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism (El Paso: LFB Scholarly Publishing LLC, 2013).

[ix] Michael Schudson, The Rise of the Right to Know: Politics and The Culture of Transparency, 1945-1975 (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2015).

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